United States District Court, M.D. Louisiana
JEFFREY H. TUCKER,
EXXON MOBIL CORPORATION d/b/a EXXONMOBIL CHEMICAL COMPANY.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
This matter is before the Court on referral from the district judge of the plaintiff's Motion to Remand. (R. Doc. 5). The Motion is opposed. (R. Doc. 12). Plaintiff has filed a Reply. (R. Doc. 18). The issue is whether the jurisdictional amount required for diversity jurisdiction under 28 U.S.C. § 1332 has been satisfied.
On January 16, 2014, Plaintiff Jeffrey H. Tucker filed his petition in the 19th Judicial District Court, East Baton Rouge Parish, Louisiana, naming as Defendant Exxon Mobil Corporation d/n/a ExxonMobil Chemical Company. (R. Doc. 1-2 at 9-11, "Petition"). Plaintiff alleges that on January 16, 2013, he was employed by ISC Constructors, LLC ("ISC") as an electrician and assigned to work at the Vistalon Unit of the ExxonMobil Baton Rouge Chemical Plant. (Petition, ¶¶ 3-4). Plaintiff alleges that the gate mechanism for the Vistalon Unit gate was broken and the gate had to be entered manually. (Petition, ¶ 4). In the course of opening and securing the gate, the gate fell on the Plaintiff's middle finger of his right hand, amputating it at the "third phalanx" of the finger. (Petition, ¶ 4). Plaintiff has alleged negligence and intentional torts against Defendant and is seeking judgment "for all general and equitable relief, emotional distress, pain and suffering, plus reasonable attorney's fees and costs" and interest. (Petition, ¶¶ 7-8).
On April 16, 2014, Plaintiff filed a Supplemental and Amended Petition for Damages. (R. Doc. 1-2 at 22-24, "Amended Petition"). The Amended Petition alleges that Plaintiff was jointly employed by ISC and Defendant. (Amended Petition, ¶ 3). The Amended Petition seeks to recover unpaid hourly wages from Defendant between June of 2012 and January of 2014. (Amended Petition, ¶¶ 8-9). The Amended Petition alleges that because Plaintiff was required to arrive at work 20 to 30 minutes before the beginning of shift, he is entitled to damages pursuant to La. R.S. 23:631 et seq. (Amended Petition, ¶ 11). Otherwise, the Amended Petition does not change the claims alleged in the original Petition.
On April 25, 2014, Plaintiff served Defendant with the Petition and Amended Petition. (R. Doc. 1-2 at 25-26).
On May 7, 2014, Defendant filed a Notice of Removal asserting that the Court has diversity jurisdiction over the action pursuant to 28 U.S.C. § 1332. (R. Doc. 1). The Notice of Removal states that it is facially apparent from the petition that the amount in controversy has been satisfied.
On June 5, 2014, Plaintiff filed the instant Motion to Remand seeking remand on the basis that the amount in controversy requirement is not satisfied. (R. Doc. 5).
II. ARGUMENTS OF THE PARTIES
In support of remand, Plaintiff argues that Defendant cannot meet its burden of establishing that jurisdictional amount of $75, 000.00, exclusive of interest and costs, is satisfied. (R. Doc. 5-1 at 2). Plaintiff states that "loss of the tip of one finger, however startling and unwarranted, is not a substantial injury from a damage perspective." (R. Doc. 5-1 at 3 n.2). Plaintiff further argues that his claim for unpaid wages and penalties, at the most, would reach $12, 675.00. (R. Doc. 5-1 at 3 n.2).
Plaintiff also submitted a post-removal stipulation that he "renounces any portion of any judgment which may be rendered in his favor" against Defendant over $75, 000.00, exclusive of interest and court costs. (R. Doc. 5-2). Plaintiff argues that any ambiguity regarding the amount in controversy is resolved by his stipulation, and the action should therefore be remanded. (R. Doc. 5-1 at 3-4).
In opposition, Defendant argues that it is facially apparent that the amount in controversy requirement is satisfied based upon Plaintiff's personal injury claims alone. (R. Doc. 12 at 1). Defendant focuses on the Petition's use of the words "amputating" and "analytical" loss as indicating that the amount in controversy is facially apparent. (R. Doc. 12 at 5). Defendant relies upon three Louisiana decisions involving finger amputations awarding general damages exceeding the jurisdictional amount. Furthermore, Defendant provides evidence that the Plaintiff has undergone surgery on the amputated fingertip. (R. Doc. 15). Defendant further states that because the amount in controversy is facially apparent, Plaintiff's post-removal stipulation does not deprive the Court of jurisdiction. (R. Doc. 12 at 7-8).
III. LAW & ...